Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 36

_Mr. Lord_: I was going to ask my friends on the other side to give us their authorities, so that we shall know what we are to go to the Jury upon. We would then be able to lay our views before the Court and to divide the labor of summing up--some of us addressing ourselves entirely to the Court.

_Mr. Evarts_: I would have no objection to taking that course if I had been prepared for it. In the presentation of the case, we rely on the statute of the United States--on the fact that the defendants are within the terms of the statute; and that the affirmative defence, growing out of the state of things in this country, does not apply in a Court of the United States, and under a statute of the United States, which still covers the condition of the persons brought in. Whether they are citizens or aliens, nothing has been shown which takes them out of the general operation of our laws. On the question of the ingredients of the crime of piracy--which is a particular inquiry, irrespective of the considerations connected with the state of war--I do not know that we need refer to anything which is not quite familiar.

The cases referred to by the learned counsel for the prisoners--the United States _vs._ Jones, the United States _vs._ Palmer, and the United States _vs._ Tully--contain all the views in reference to the ingredients of the crime of piracy, or to the construction of the statutes, that we need to present. In the general elementary books to which the learned counsel have referred--the various books on the Pleas of the Crown--there are pa.s.sages to which we shall have occasion to refer.

_Judge Nelson_: The counsel for the Government should give to the counsel on the other side, before the summing up is commenced, all the authorities on which they intend to rely.

_Mr. Evarts_: That we shall do, of course.

_Judge Nelson_: We will take them now.

_Mr. Evarts_: I refer to 1st East's Pleas of the Crown, 70-1.

It is under the t.i.tle of Treason, but it is on the point of the character of the crime as qualified by the influence on the party, of force, or of the state of the population by which the accused was surrounded. I read from page 70:

"Joining with rebels freely and voluntarily in any act of rebellion is levying war against the King; and this, too, though the party was not privy to their intent. This was holden in the case of the Earl of Southampton, and again in Purchase's case, in 1710. But yet it seems necessary, in this case, either that the party joining with rebels, and ignorant of their intent at the time, should do some deliberate act towards the execution of their design, or else should be found to have aided and a.s.sisted those who did. * * * But if the joining with rebels be from fear of present death, and while the party is under actual force, such fear and compulsion will excuse him. It is inc.u.mbent, however, on the party setting up this defence, to give satisfactory proof that the compulsion continued during all the time that he stayed with the rebels."

The case of Axtell, one of the regicides, is referred to. The defense was set up for him that he acted by command of his superior officer; but that was ruled to be no defence. I now read from page 104:

"One species of treason, namely, that of committing hostilities at sea, under color of a foreign commission, or any other species of adherence to the King's enemies there, may be indicted and tried as piracy, by virtue of the statutes."

That is, that although being guilty of treason, in its general character of adhering to the enemy, yet it also falls within the description of piracy, and may be proceeded against as such. On the question of the element of force or intimidation as entering into the crime of robbery, I refer to 1st Hawkins' Pleas of the Crown, page 235:

"Wherever a person a.s.saults another with such circ.u.mstances of terror as put him into fear, and cause him, by reason of such fear, to part with his money, the taking thereof is adjudged robbery, whether there were any weapon drawn, or not, or whether the person a.s.saulted delivered his money upon the other's command, or afterwards gave it him upon his ceasing to use force, and begging an alms; for he was put into fear by his a.s.sault, and gives him his money to get rid of him.

"But it is not necessary that the fact of actual fear should either be laid in the indictment or be proved upon the trial; it is sufficient if the offence be charged to be done _violenter et contra voluntatem_. And if it appear upon the evidence to have been attended with those circ.u.mstances of violence or terror which in common experience are likely to induce a man to part with his property against his consent, either for the safety of his person or for the preservation of his character and good name, it will amount to a robbery."

I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the question of double or doubtful allegiance:

"Though there may be due from the same person subordinate allegiances, which, though they are not without an exception of the fidelity due to the superior Prince, yet are in their kind _sacramenta ligea fidelitatis_, or subordinate allegiances, yet there can not, or at least should not, be two or more co-ordinate allegiances by one person to several independent or absolute Princes; for that lawful Prince that hath the prior obligation of allegiance from his subject can not lose that interest without his own consent, by his subject's resigning himself to the subjection of another."

I refer to the case of the United States _against_ Tully, 1st Gallison's Reports, p. 253-5, to show that the statute does not, in terms, require that there shall be any personal violence or putting in fear to const.i.tute robbery, provided the offence is committed _animo furandi_.

I also refer to the case of the United States _vs._ Jones, 3 Was.h.i.+ngton C.C.R., p. 219, on the point of the justification given by a commission; to the case of United States _vs._ Hayward, 2 Gallison, 501; to the observations of Chancellor Kent, vol. I., p. 200, marginal page 191; to the United States _vs._ Palmer, 3 Wheaton, p. 634, as to the manner in which our Courts deal with international questions respecting the recognition of nationalities; to the case of the Santissima Trinidad, Kent's Commentaries, vol. I., p. 27, marginal page 25; to the case of Rose _vs._ Hinely, 4 Cranch, 241. I refer to the latter case for the general doctrines therein contained on the proposition that although a parent or original Government may find the magnitude and power of the rebellion such as to induce or compel it to resort to warlike means of suppression, so as that toward neutral nations there will grow up such a state of authority as will compel the recognition by neutral nations of the rights of war and belligerents, that is not inconsistent with or in derogation of the general proposition that the parent Government still maintains the sovereignty, and can enforce its munic.i.p.al laws, by all those sanctions, against its rebellious subjects. In other words, that the flagrancy of civil war, which gives rise to the aspect and draws after it the consequences of war, does not destroy either the duty of allegiance or the power of punis.h.i.+ng any infraction of law which the rebels may be guilty of, either in reference to the princ.i.p.al crime of treason, or in reference to any other violation of munic.i.p.al rights.

I also ask your honors' attention to a recent charge of Judge Sprague, to the Grand Jury in the Ma.s.sachusetts District, in reference to the crime of piracy.

On the question of jurisdiction, I refer to the case of the United States _vs._ Hicks, decided in this Court.

I refer to the case of the Mariana Flora, to show that the arrest of a pirate at sea arises under a general principle of the law of nations, which authorizes either a public or a private vessel to make the arrest. It is a.n.a.logous to the common-law arrest of a felon. The point in the case of the Mariana Flora is, that any public or private vessel has a right to arrest a piratical vessel at sea and bring it in. It differs in that respect from the authority to arrest a slaver.

On the general question of the ingredients of robbery, I refer to Archbold's Criminal Practice and Pleadings, 2 vol., p. 507, marginal pages 417, 510, 526.

In political connections I shall have occasion to refer to the Const.i.tution of the United States and to the Articles of the Confederation, to the Virginia and Kentucky resolutions, and the answers of the other States of the Union, which will be found collected in Ellett's Debates, vol. 4, pages 528 to 545.

I may refer also to Mr. Pinckney's speech in the Convention of South Carolina which adopted the Const.i.tution, same volume, p. 331; to the formal ratifications of the Const.i.tution by the different States of the Union, same volume, p. 318; and I may have occasion to refer to Grotius in connection with the discussion of the general state of war. The citations will be--book 1st, chap. 1, secs. 1 and 2; chap. 3, secs. 1 and 4; and chap. 4, sec. 1.

MR. LORD'S ARGUMENT.

_Mr. Lord_, of counsel for the defence, said:

May it please your honors,--The distribution of duties which counsel for the defence have made among themselves is, that I shall briefly present the propositions of law, somewhat irrespective of the wide political range which my friends seem to think is to be involved. I shall not pursue even the field which Mr. Larocque has opened, knowing that he has cultivated it to a far greater degree than I have, and therefore I will leave it to him to till. My friend, Mr. Brady, will address the Jury on any questions of fact that may be supposed to be involved.

Before I enter upon the discussion, and with the view that this case may be relieved from one prejudice which probably every man has felt on first hearing of it, I beg leave to set ourselves all right on the idea that there is something different in a private armed s.h.i.+p from a public armed vessel, in the law, and in the view of the people of the country.

I desire to read on that subject a letter from Mr. Marcy to the Count de Sartiges.

_Mr. Lord_ read the letter, and continued:

Therefore in this discussion, so far from a private armed vessel being regarded with disfavor, it is regarded, and has to be regarded, with all the favor which would belong to it as a regularly commissioned cruiser, belonging to the State, and not to the individual.

I now approach, with all the brevity due to your valuable time, the question of jurisdiction. It seems to me to be very clear indeed that after Harleston and the crew, of the Savannah were taken by the Perry, he was confined as a prisoner, as one of a crew of a piratical vessel, for an act charged as piratical, on board the United States s.h.i.+p-of-war Minnesota, by order of its commander. That Harleston was taken by the said commander into the District of Virginia, within a marine league of its sh.o.r.es, where the said s.h.i.+p remained; and the said Harleston and the other prisoners could have been there landed and detained for trial. If the facts are so, the Circuit Court of this District has no jurisdiction, and the prisoners should be acquitted.

The evidence of our friend, Commodore Stringham, on that subject, leaves us no doubt as to the character of the arrest. After seeing the Perry close in to Charleston, she having been ordered by him to cruise further off, and he, wondering what she was doing there--he says:

"She hailed us and informed us she had captured a piratical vessel.

The vessel was half a mile astern. Captain Parrot, of the Perry, came and made to me a report of what had taken place. I ordered him to send the prisoners on board, and I sent a few men on board the Savannah to take charge of her during the night. The vessels were then anch.o.r.ed. Next morning I made arrangements to put a prize crew on board the Savannah and send her to New York, and I directed the Captain of the Joseph to take pa.s.sage in her. I took the prisoners from the Perry, and directed the Perry to proceed," &c.

Again he testifies:

"_Q._ What was your object in transferring the prisoners from the Perry to the Minnesota?

"_A._ Sending them to a Northern port. The port of New York was the port I had in my mind to send them to, in the first s.h.i.+p from the station."

The prisoners, thus taken from a piratical vessel, he determined to carry to Norfolk, and to send them thence to the North for trial.

Now, if your honors please, my learned friend (Mr. Evarts) seems to say that there is no authority in law for a United States vessel to arrest pirates at sea; but if you will read the President's proclamation of 19th June you will find that he speaks of dealing with the persons who may be taken on board private armed s.h.i.+ps as pirates. I will then ask to direct your attention to the Act of 1819 (3d Vol. Statutes, p. 510), where the President is authorized to employ public armed vessels to arrest offenders against that law. Therefore the capture of the prize was not only a part of the general law of nations, but it was particularly a thing which the commanders of s.h.i.+ps of the United States were charged by the proclamation of the President, and by Act of Congress, to do.

I now approach the other question, as to where these prisoners were apprehended, or into what District they were first brought. That they were apprehended by a warrant from the United States Commissioner in New York, is not in dispute. The question, however, is, where they were first brought. If an officer having them in charge could anchor his vessel at Baltimore, and then at Philadelphia, and then bring his prisoners to New York, it would be putting the law entirely in his hands and dissipating all its force. In ordinary cases of crime the jurisdiction is local; and that for many reasons. One is, that a man is to be tried by his peers--meaning those of his own neighborhood,--and that it is easier to procure evidence at the place where the crime is committed. The law does not give to any man the power of a.s.signing the place of trial. In the case of offences committed on the high seas, the law declares that the accused shall be tried in the District into which he is first brought.

Now, that tnese men were held by Capt. Stringham for the purpose of being tried as pirates, the evidence is clear. They were transferred from the Perry to the Minnesota, taken to the Norfolk station, and there kept in irons on board the Minnesota till they were transferred to the Harriet Lane. Could they have been detained there for trial? It might be an inconvenience if there was no Court. They might have had to be detained for a long time, or Congress might pa.s.s some law varying the jurisdiction. But as the law stood, if these men could have been landed and detained for trial, then that was the District in which they were necessarily to be tried. Can any one say that it was not as easy to have landed these men at Fortress Monroe, or at Hampton, as to transfer them to the Harriet Lane? And could they not have been detained there? You did not need a Court to detain them. They were taken by force, and might have been detained in the fortress till a trial should be had. There was no difficulty in their being landed in Virginia; and, moreover, there were in Western Virginia loyal Courts, where they could be tried.

Now, what is there that takes away the jurisdiction which belongs to that part of the country and not to this? "Why," says Captain Stringham, "I wanted to send them to New York." But had he any right to do so, when he had actually brought them to that station where his s.h.i.+p belonged, and where he was bound to keep her unless he returned her to the cruising ground? Remember that his s.h.i.+p remained there some time before the transfer was made. They were detained as prisoners there, and might as well have been detained on sh.o.r.e. Therefore, it seems to me, that unless the capturing officer, and not Congress, has the right to determine the place where the trial shall be had, these men were to be tried in the District of Virginia.

Now, it is no answer to this to say that, where a vessel is sailing along the sh.o.r.es of a District, a prisoner on board is not brought there in the proper sense of the word. The s.h.i.+p is not bound to stop and break up her voyage in order to have the Court designated where he is to be tried; but where the s.h.i.+p comes into port--where she stops at a port--I submit to your honors that this is the bringing contemplated by the statute.

I now approach, if your honors please, the merits of this case. The indictment is founded on two sections of the Crimes Act, originally two separate and very distinct statutes. It is the eighth section which makes robbery on the high seas piracy. That embraces the first five counts of the indictment, which are varied in mere circ.u.mstances. The remaining counts rest on the transcript into the legislation of this country, from the Act of 11 and 12 William III., to the effect, substantially, that if any citizen of the United States shall, under color of a commission from any foreign Prince or State, or under pretence of authority from any other person, commit acts of hostility against the United States, or the citizens thereof, that shall be piracy. In the argument which I shall address to your honors I will beg leave to characterize the first as piracy by the laws of nations, and the second as statutory piracy. But, before I discuss that subject, permit me to say that, as to eight of these prisoners, it is conceded that they do not come under that section, as the evidence for the prosecution shows that they were not citizens of the United States. So that, as to these eight, unless they are adjudged pirates under the eighth section, they must be acquitted, if they can justify themselves under the commission.

_Judge Nelson_: Then the other four, you say, can only be convicted under the ninth section?

_Mr. Lord_: Yes; that is the statutory process, if I may be permitted to give it that name.

The act is charged as an act of robbery, not as an act of treason. It is not alleged to have been done treasonably. If the prosecution wanted to give it that character, they must have alleged it to be treason.

They must have alleged that this act, done on the high seas, was done treasonably, traitorously, and therefore piratically. They have alleged no such thing. I take pleasure in saying that the District Attorney, in opening this case, did it with great fairness, and disavowed any idea of introducing treason into the case. There are many reasons why, if that were pretended, this whole trial should stop. The requisites of a prosecution for treason have not been, in any degree, complied with.

The charge is robbery. It may be charged as done piratically, involving _animus furandi_. Let us see, for an instant, what piratical is. Piracy is, by all definitions, a crime against all nations. It enters into every description of a pirate that he is _hostis humani generis_. That is the common-law idea of piracy. It is not a political heresy that will make piracy. It is not a political conformity that will always exempt from the charge of piracy. For instance, if the officer of a Government vessel, with the most full and complete commission, such as my friend Commodore Stringham had, should invade a s.h.i.+p at sea, and should, under pretence of capture, take jewels and secrete them, not bringing them in for adjudication, he would be a pirate, because, though he held a commission, he did the act _animo furandi_,--did it out of the jurisdiction of any particular country,--did it against the great principles of civilization and humanity.

Again, if a commissioned vessel hails a private s.h.i.+p, and, on the idea that she is a subject of prize, captures her, and it turns out that that capture is illegal and unwarranted, that fact does not make the act piracy. Although the act might be ever so irregular--although it might subject the officer to the severest damages for trespa.s.s--yet it is not piratical, and the officer is not to be hung at the yard-arm because he mistakes a question of law. Your honors therefore see how utterly it enters into the whole subject that the thing shall be done _animo furandi_, piratically, as against the general law of nations and the sense of right of the civilized world.

Well, now, we are at once struck with this consideration: Suppose the act is regarded as not piratical by millions of people having civilized inst.i.tutions, having Courts of Justice, giving every opportunity for a trial of the question of forfeiture or no forfeiture--why, it shocks the moral sense to say that that is done _animo furandi_, that it is a theft and a robbery, and that the man who does it is an enemy to the human race. Carry the idea a little further, and you find that the commission under which a man acts in seizing a vessel with a view of bringing it in as a prize is regarded by all the great commercial nations of the world as regular, and that the act is regarded not as a piratical, but as a belligerent act. Does it not shock the very elements of justice to have it supposed that in such a case the man acting under the commission, and within its powers, is to be deemed an enemy of the whole human race, while all the human race, except the power which seeks to subject him to punishment, says the act is not piratical?